January 25, 2005

Fun With Iraqi Constitutions

Matt Yglesias rightly notes that even if the Sunnis do get a hand in writing the new Iraqi constitution, the entire process is so riddled with veto points that any real reform seems utterly hopeless. Stalemate, frustration, and war is still a realistic option.

Anyway, I'm still working on a longer post about the Iraqi constitution, but let me just add a few things.

At this point, it's very likely that the Shi'ites will win upwards of 75 percent of the seats in the National Assembly, thanks to low Sunni turnout. If this happens, they can actually legally change the ratification rule (Articles 60 and 61) in the Transitional Administrative Law that allows 3 of Iraq's 18 provinces to nullify a written constitution. There's one veto point down. With a three-fourths majority, the Shi'ites could also reduce the number of votes needed to make amendments to the constitution by changing article 3A. (Ordinary laws, by the way, are very easy to pass as far as I can tell, see Articles 36 and 37.) So there's another veto point down.

Now this means, naturally enough, that the Shi'ites could run roughshod over the Kurds and Sunnis and write up and pass whatever constitution they damn well please. That's a real danger—the world is full of politicians who try to reach too far. Alternatively, though, the Shi'ites could realize that they really can't afford to piss the Sunnis off—and here the U.S. could threaten withdrawal to provide some pressure—and they all work together on a constitution that's now fairly pliable. (The Shi'ites could, for instance, offer to create an upper chamber, ala the U.S. Senate, that affords minority protection to Kurds and Sunnis, in exchange for abolishing the much-too molasses-like ratification and amendment rules.)

Oh, and there's another fun aspect to all of this. Ayatollah Ali Sistani—who will continue to exercise a very large influence over the Shi'ites—still thinks that the new National Assembly ought not to be bound by Iraq's interim constitution, the TAL. And as far as I know, the UN more or less accepted this view when it blessed the June handover. It's tough to know what to make of this. In the event of a stalemate, the Shi'ites could theoretically just throw away the interim constitution, since its legitimacy is pretty dubious. So Matt's not necessarily right when he says that "the status quo would just leave [the current interim government] in charge." That's legally true only if everyone's bound by the TAL, but Sistani is quite obviously not of that opinion.